Perhaps the single best and most valuable piece of legal advice that can be given to anyone being questioned by the police is to “shut up.” Seriously, don’t say anything. In my role as a criminal, DUI and even driver’s license restoration lawyer, if I could wave a magic wand and get my clients to do just one thing, it would be to keep quiet. In this article, I want to take a quick and simple look at the value of silence, and how the natural urge to speak complicates just about everything. Chances are, if you’re reading this because you’ve been charged with a crime , a drinking and driving offense, or need to get your driver’s license back, and you’ve probably said things along the way that you’d like to take back. Although less frequently a problem in DUI cases, a situation just crossed my desk yesterday (the inspiration for this article, in fact) where someone who should not have said anything probably talked themselves right into a drunk driving charge.
In that case, the person (I will use “he/she” or “they” to avoid even a gender identification) had been in an automobile accident caused by the other driver. This person left the scene, but the other driver got the plate and the police showed up at his/her home. The person was rather drunk when the police came, and when asked about whether he/she had been drinking before driving and at the time of the accident, the person admitted to having done so, and having been drunk at the time. Subsequently, the person tested out with a rather high BAC. Although I cannot say much more, charges will be coming. The problem here is that had this person simply NOT said anything, the police would have been faced with an almost certain inability to prove that he/she was over the limit at the time of the accident, effectively killing the likelihood of a drunk driving conviction.
I see this all the time in criminal cases, as well. Let’s use an indecent exposure case for an example. Imagine the police get a call about a guy exposing himself while driving on Main Street. The caller can’t give a great description of the driver, but does give a license plate number. Running that information, they identify the car as belonging to Fred, and the police contact him. They ask Fred if he was anywhere on or near Main Street at the relevant time, and he answers “yes.” With that answer, Fred has just seriously helped the case against him. Now the police know that Fred was in the area at or around the time the caller said she was flashed. Had Fred just said nothing, the police would probably not be able to prove he was even in the area, much less that he flashed anyone. Fred, like so many people, probably had pangs of guilt and the inner turmoil of just knowing that the police “know” (knew) that he did it, so he thought it would be better to be honest. To be clear, in most cases, the police do “know.” Cops are smart, and most police officers develop a better sense of human nature than anyone in any other profession. A street cop learns to read facial expressions and body language in ways you and I will never comprehend. Still, “knowing” something is one thing, but being able to prove it is quite another.